The Personal Injury Court reiterates that reports (and other evidence) to be relied upon should be disclosed when available.

In Napier v AXA Insurance UK Plc [2023] SC EDIN 20 the pursuer was involved in a road traffic accident on 4 November 2018. Liability had been admitted by the defender within 3 weeks of receiving the compulsory pre-action protocol (CPAP) letter of claim, but the claim did not resolve, and litigation commenced on 27 October 2021 to avoid time bar. The pursuer produced an orthopaedic report before the action was raised, followed by a second orthopaedic report and a neurology report in December 2021 and January 2022, and then a report from Professor Carson, Consultant Neuropsychiatrist, on 5 September 2022. The action was sisted (paused) and in November 2022, settlement agreed.

The defender argued that the pursuer's reports should have been disclosed earlier. The neurology report (which first raised the possibility of a neurological injury) and the supplementary orthopaedic report were available at a pre-action stage and should have been provided, and there was a 6-month delay in the intimation of Professor Carson's report. If each had been disclosed when received, it was submitted that the claim would have resolved sooner, such that litigated costs were not due.

Sheriff Campbell accepted the defence submission that it was appropriate to modify the pursuer's costs. He agreed that the pursuer's medical position had become more complicated than it first appeared but outlined that any such development should be responded to timeously (including providing an update to the defender) and that no compelling reason had been given for the failure to disclose the medical reports in a timely fashion. Sheriff Campbell reiterated that "the court expects timely disclosure of expert reports as a cornerstone of personal injuries procedure".

The pursuer's expenses were modified by 50%. Sheriff Campbell did not go further and apply CPAP expenses because it could not be assumed that the case would have settled without litigation, given the complications in the pursuer's condition which had emerged.

The outcome and language of this decision serves as an important reminder to pursuers of what their pre-action disclosure obligations are. Strictly, when a case proceeds under CPAP and liability is admitted, the pursuer should disclose their medical report within 5 weeks of when it is received. Insurers should remember to press this deadline upon agents and, if not complied with, to caution that a failure to disclose before litigation will be met with opposition. When doing so, Napier is a key defence authority to refer to and rely upon.


Gemma Nicholson

Senior Associate